Federal inspectors have opened investigations into COVID-related worker deaths or hospitalizations at more than a half dozen nursing homes and specialty hospitals in Massachusetts, WGBH News has learned. Employee advocates, though, say they have little hope for meaningful penalties.
According to federal records, since Apr. 17 the Occupational Safety and Health Administration (OSHA) has opened investigations into catastrophic injury of workers at five nursing or rehabilitation facilities in Massachusetts: Alliance Health in Braintree, Alliance Health at West Acres in Brockton, Baypointe in Brockton, The Palm Center in Chelmsford and Encompass Health Rehabilitation Hospital in Woburn. OSHA is also conducting such investigations at the Brockton VA Medical Center, the senior living community Traditions of Wayland and the Winthrop senior services center run by the East Boston Neighborhood Health Center.
All of the inspections appear to involve COVID-related deaths of employees. USA Today reported in early May that OSHA had launched nearly 200 COVID-related workplace inspections nationwide, including at about 50 hospitals and two dozen nursing homes.
Ted Doyle, a spokesman for LCB Senior Living, which operates Traditions of Wayland and 27 other senior communities, said, “this is the first time there has ever been an associate death” since LCB was established in 2011. Doyle said the company has cooperated with OSHA and investigators have interviewed officials at the Wayland facility.
In a statement to WGBH News, Baypointe confirmed the death of its employee and said the facility “has followed all CDC guidance to contain the spread of COVID-19, including restricting visitation, screening all staff for symptoms, and proper use of Personal Protective Equipment. The facility has a five-star rating on Medicare.gov and has received two consecutive deficiency-free state surveys. We will, of course, cooperate with any investigation concerning the circumstances of this employee’s passing.”
The other facilities did not respond to requests for comment.
The spate of nursing home investigations is unusual. According to a WGBH News analysis of OSHA inspection data, OSHA opened only 11 investigations into nursing homes and assisted living centers in Massachusetts in all of 2019, four in 2018 and one in 2017. The current raft of investigations are all coded by the agency as "fatal or catastrophic," the most serious category of inspection; no other nursing home investigations in the state over the past ten years have had that designation. OSHA databases indicate no current nursing home investigations in Maine, New Hampshire, Rhode Island or Vermont, but two have been launched in Connecticut.
Nursing homes and senior living centers have been the center of the COVID-19 outbreak in Massachusetts, with 3,200 of the state's 5,300 fatalities occuring in long-term care facilities. That means workers in those facilities are also at heighened risk of infection.
But workplace safety advocates say it is unlikely that any of the OSHA inspections will lead to significant penalties against the facilities where worker deaths have occurred.
“Folks who work in the profession of health and safety don't feel that, number one, OSHA has an adequate number of inspectors to really do a thorough job, and ... the fines that OSHA gives are inadequate in most cases for the violations,” said David Turcotte, director of the New England Consortium, a workplace safety training program for first responders at UMass Lowell.
Turcotte also notes that OSHA in many cases may be unable to send inspectors in to medical facilities because of the threat of COVID contagion.
“If you can’t go out there to actually see the facility, inspect it, meet with folks,” that may limit OSHA’s effectiveness, he said. “ You can obviously do Zoom calls, phone calls and interview people, but being on site, it allows you to see more, obviously. And you may identify other issues if you are on site doing a thorough inspection.”
OSHA issued coronavirus-specific enforcement guidance to its own staff, noting that, “If the formal inspection can be conducted without accessing a location of suspected or confirmed SARS-Cov-2 exposure, then all possible steps must be taken for [compliance officers] to avoid such exposure.”
There is also no OSHA regulation specifically addressing worker protection from infectious diseases. The agency has issued a COVID-19 guidance outlining ways for employers to protect workers, such as developing policies for isolating sick workers and changing shifts to minimize contact among workers. But the guidance is voluntary, and the first sentence says, “This guidance is not a standard or regulation, and it creates no new legal obligations.”
Thursday afternoon, several hours after this story origianlly published, OSHA issued an "alert" to nursing homes about protecting workers, but the document said it was only "listing safety tips employers can follow to help protect nursing home and long-term care facility workers from exposure to the coronavirus." The alert included things like maintaining a minimum of six feet of spaces between workers and residents, keeping close tabs on supplies of personal protective equipment and limiting the size of gatherings.
“OSHA doesn't have the ability to enforce the guidance or other kinds of issues outside of where they already have existing standards,” said Jodi Sugerman-Brozan, executive director at the Massachusetts Coalition for Occupational Safety and Health. “And it has meant we've seen very little enforcement action against employers who are not meeting health and safety protections at sites across the state.”
“We are in the midst of what is the biggest occupational health and safety crisis of our lifetimes,” Sugerman-Brozan said. “And OSHA has pretty much been missing in action. They have yet to really step in and ensure that workers are getting the PPE and other kinds of protective equipment that they need.”
Given the widespread nature of the outbreak in Massachusetts, with more than 80,000 confirmed cases, it may be challenging to prove that a senior care worker was exposed at work, rather than elsewhere.
OSHA declined a request for an interview related to the nursing home investigations, but an agency spokesman provided a detailed statement documenting numerous steps the agency has taken to protect workers since the coronavirus pandemic emerged in January.
"Under existing OSHA rules and requirements, employers have a duty to protect employees who are exposed to coronavirus at work," the statement said. "OSHA is working diligently to help employers understand and meet those obligations. OSHA’s enforcement program focused on the coronavirus gives particular attention to protections for health care workers, emergency responders, and others with a heightened exposure to coronavirus."
The agency argues that existing regulations provide sufficent enforcement tools to protect workers from infectious diseases.
"Because of the enforcement authorities already available to it and the fluid nature of this health crisis, OSHA does not believe that a new regulation, or standard, is appropriate at this time."
This article has been updated.
Do you work inside a nursing home or other elder housing and have concerns you think the public deserves to know about? We want to hear from you and will not use your name. Email us at investigations@wgbh.org
